Kerala High Court
Basheer vs State Of Kerala on 26 March, 2014
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 26TH DAY OF MARCH 2014/5TH CHAITHRA, 1936
Crl.MC.No. 837 of 2010
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AGAINST CC 310/2008 ON THE FILE OF THE JUDICIAL FIRST CLASS
MAGISTRATE COURT II, MANANTHAVADY
PETITIONERS/ACCUSED:
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1. BASHEER, S/O.ABDUL RAHIMAN,
ASHIQ MANZIL, MUNDERI JUNCTION, KALPETTA,
WAYANADU.
2. K.SATHYAN, S/O.P.K.KESAVAN NAIR,
MEERA NIVAS, PERUMTHATTA, CHUNDALE
WAYANADU.
BY ADV. SRI.JESWIN P.VARGHESE
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
*ADDL. 2ND RESPONDENT:
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PRAJALATHA, W/O.PRINCE,
CHIRAYIL HOUSE, KAMBALAKKAD,
WAYANADU.
* ADDL.2ND RESPONDENT IMPLEADED VIDE ORDER IN
CRL.M.P.NO.3351/2010 DATED 26.3.2014.
BY ADV. PUBLIC PROSECUTOR SMT.BINDU GOPINATH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
26-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 837 of 2010
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE A1: COPY OF THE NOTICE ALLEGED TO HAVE BEEN PUBLISHED
BY THE PETITIONER.
ANNEXURE A2: COPY OF THE FINAL REPORT IN C.C.No.310/2008 ON
THE FILE OF THE JFCM COURT II, MANANTHAVADY
ANNEXURE A3: COPY OF THE ORDER OF THE JFCM COURT NO.II,
MANANTHAVADY IN CMP NO.2381/2009 IN C.C.NO.310/2008 DATED
19.8.2009
ANNEXURE A4: COPY OF THE ORDER OF SESSIONS COURT, WAYANAD IN
CRL.R P NO.25/2009 DATED 23.11.2009
RESPONDENT'S EXHIBITS: NIL
//TRUE COPY//
P.A TO JUDGE
ab
P.UBAID, J.
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Crl.M.C No.837 of 2010
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Dated this the 26th day of March, 2014
O R D E R
The petitioners herein are the accused in C.C.No.310/2008 before the Judicial First Class Magistrate Court II, Mananthavady, wherein the offence punishable under Section 509 IPC is alleged by the prosecution. Crime No.223/2007 which led to the final report in the said case, was registered in the Kalpetta Police Station in Wayanad district, on a complaint made by the 2nd respondent herein. She had worked for some time as commission agent under the petitioners herein, for the circulation and promotion of a students magazine by name 'School Master'. Alleging insult and mental harassment the 2nd respondent filed Annexure A2 complaint against the petitioners before the police on 12.12.2007. It is alleged in the Annexure A2 complaint that on a previous occasion she had even made an attempt to commit suicide due to the insult and defamatory words made by the petitioners herein. When they continued such acts she filed the complaint. On the said complaint the police registered crime under Section 509 IPC. After Crl.M.C No.837 of 2010 2 investigation, final report was submitted before the Court of the learned Magistrate, and it was taken on file as C.C.No.320/2008. The application filed by the petitioners for discharge as C.M.P No.2381/2009 was dismissed by the learned Magistrate on 19.8.2009. Annexure A3 is the said order. Though the petitioners preferred revision before the Court of Sessions, Wayanad, they could not obtain order of discharge. Crl.R.P.25/2009 was dismissed by the learned Sessions Judge by order dated 23.11.2009. Annexure A4 is the said order. Now the petitioners seek an order from this Court under Section 482 Cr.P.C quashing the prosecution on the ground that the said prosecution, on the basis of a First Information Statement which does not contain the essential elements of the offence under Section 509 IPC, is nothing but abuse of legal and judicial process.
2. On a perusal of Annexure A2 complaint and the appended final report, I find that crime in this case under Section 509 IPC was wrongly registered by the police. The 2nd respondent has a grievance that the petitioners had published some notice against her containing false allegations. In Crl.M.C No.837 of 2010 3 Annexure A2 complaint her main grievance is that the petitioners had published some notice or news insulting or defaming her. In the said notice the petitioners have alleged misappropriation of amounts by her, while acting as commission agent. The complaint also alleges that on 10.7.2007 one of the petitioners had made an attempt to molest her, and regarding the said incident another prosecution is pending. The allegations in Annexure A2 complaint are general, that the petitioners had published some notice or spread some news defaming her and insulting her. On such a complaint or allegation a crime under Section 509 IPC cannot be registered.
3. The learned Magistrate, and also the learned Sessions Judge erred in law to find that this prosecution can proceed under Section 509 IPC. Mere insult will not attract Section 509 IPC. For a prosecution under Section 509 IPC there must be a definite allegation of insult to the modesty of woman or intrusion into the privacy of woman. Thus the allegation must involve modesty of woman or privacy of woman. Mere insult or false allegation will not attract a prosecution under Section 509 IPC. In Annexure A2 complaint the 2nd respondent does not have Crl.M.C No.837 of 2010 4 a case that the petitioners herein had insulted her modesty as a woman, or that they had intruded into her privacy in any manner. If at all the petitioners had spread or published any insulting and defamatory matters, she can initiate prosecution for defamation under Section 500 IPC, provided, the allegations would come under the definition of defamation under Section 499 IPC. Any way mere insult or insulting words, or abuse will not attract a prosecution under Section 509 IPC. In this case there is absolutely nothing in the complaint preferred by the 2nd respondent, or in the final report submitted by the police to indicate that the petitioners had in any manner insulted her modesty or intruded into her privacy. Merely insulting a woman is different from insulting the modesty of woman. The subject of insult for a prosecution under Section 509 IPC must be the modesty of woman and not the woman as such. When there is nothing to make out the essential elements of the offence under Section 509 IPC, the prosecution against the petitioners cannot proceed under the law. I find that the present prosecution is an abuse of legal and judicial process. If at all the 2nd respondent has a grievance or complaint that the petitioners herein had Crl.M.C No.837 of 2010 5 made or published any defamatory material against her alleging misappropriation of amount, she will have to pursue appropriate remedy, if at all such allegations would constitute the offence of defamation. The present prosecution cannot proceed because the complaint does not contain the essential elements or ingredients of the offence under Section 509 IPC.
In the result, this petition is allowed. The prosecution pending against the petitioners before the Judicial First Class Magistrate Court II, Mananthawady as C.C.No.310/2008 is hereby quashed under Section 482 Cr.P.C. The petitioners will stand released from prosecution, and the bail bond executed by them will stand discharged.
Sd/-
P.UBAID JUDGE ab